Board of County Commissioners v. City of Osborne

180 P. 233, 104 Kan. 671, 1919 Kan. LEXIS 333

• Court: Supreme Court of Kansas
• Decided: April 12, 1919
• Docket: No. 22,081
• Status: Published

Opinions

The opinion of the court was delivered by

Johnston, C. J.:

The city of Osborne took initiatory steps towards the pavement of several streets of the city, proceeding under the provisions of the latest act on the subject (Gen. Stat. 1915, § 1764). A resolution of the mayor and council declaring the improvement to be necessary, had been passed and published, and within twenty days after the publication several of the resident owners protested against the improvement. The mayor and council decided that the protest was insufficient to prevent the improvement, as the resident owners of one-half of the property liable for taxation had not signed the protest. Among others, it had been signed by the chairman of the board of county commissioners in behalf of the county of Osborne, which owned the courthouse square situated within the taxing district. If the chairman of the board had the right to represent the county and to remonstrate, the protest was sufficient to block the improvement, and, on the other hand, if he had no such authority, the protest was without effect, as the mayor 'and council determined. The district court took a different view of the question, and in an injunction proceeding, instituted by the county, held that the chairman of the board had a right to protest, and an injunction ag’ainst the making of the improvement was granted. The controlling statute provides that when the proceedings are initiated by a resolution of the council, the improvement cannot be made if the resident owners of more than one-half of the property liable for taxation protest. Prior to 1913 the protest of a majority of the resident owners in a taxing district, regardless of the extent of the land owned by them, was sufficient to prevent the making of an improvement in cases where the proceedings were instituted by a resolution of the city council or commission. The original act (Laws 1872, ch. 100) has been amended many times, but the protest of a majority of resident owners was sufficient until 1913, when an amendment was made to the effect that a protest is unavailing unless it is signed by the resident owners of more than half of the property affected. (Laws 1913, ch. 112, § 1, Gen. Stat. 1915, § 1764.) A different rule is prescribed for cities of the second class having more than 10,000 inhabitants, but the city of Osborne is not within that class, and that statute has no application here. (Laws 1901, ch. 366, § 4, Gen. Stat. 1915, § 1757.)

The property of the county was situated within the proposed taxing district, and is liable to taxation for the improvements (Comm’rs of Franklin Co. v. City of Ottawa, 49 Kan. 747, 31 ), and therefore we have the question: Is the county of Osborne a resident of the city of Osborne, within the meaning of the statute, and is the chairman of the board- of county commissioners qualified to act for the county and to make an elfective protest against the improvement? A county is a creature of the statute, and it and its officers can exercise no powers except such as the statute confers upon them. It may purchase and own property for public purposes, but it is not enough that it owns property, as it takes both ownership and residence to give the right to protest against improvements. How may a county become a resident of a city, and where is its dwelling place? In a sense, a corporation, public or private, has no local residence. It exists only in contemplation of law and cannot in fact have a. residence in the sense that a natural person.is a resident. (Kimmerle v. City of Topeka, 88 Kan. 370, 128 Pac. 367.) It occupies all the territory within its boundaries and may be said to be a county within a county. Some of the powers of the board of county commissioners may be exercised outside of the county seat and in .any part of the county. Having only such status and power as the law provides, we must look to the statute to determine whether it may protest, and thus prevent the making of an improvement within the city. The legislature, as we have seen, has expressly clothed the county with the power of ownership, bút no statute is found declaring its place of residence. There is a provision that, in the interpretation of statutes— .

“The term ‘residence’ shall be construed to mean the place adopted by a person as his place of habitation, and to which, whenever he is absent, he has the intention of returning.” (Gen. Stat. 1915, § 10973, subdiv. 23.)

' This definition cannot well be applied to a county, and a majority of the court holds that, in the absence of statutory authority, express or implied, it cannot be held that a county is a resident owner with the right to promote or obstruct the making of improvements within a city in which it may happen to own property. Private corporations are deemed to be persons within the meaning of certain statutes, and by analogy they are deemed to be residents of the places where their corporate business is done. (The State v. Bogardus, 63 Kan. 259, 65 Pac. 251; Kimmerle v. City of Topeka, supra.) These, however, are business organizations and differ materially from counties, which are but agencies of the state; created by general laws to aid in the administration of the state government. Although corporate in form, a county is a subdivision pf the fcate, and is organized for political, and not for business, purposes, and hence the rules governing private corporations do not apply to counties. Its powers are expressly defined by lav and a claimed power not found in the statutes does not exist.

It follows that the judgment must be reversed and the cause remanded for further proceedings.